“Whistleblower” ex-partner sues firm for constructive dismissal

Shut: SRA closed down firm last December

A former salaried partner of a Manchester law firm is suing for constructive dismissal on the grounds that she blew the whistle on alleged accounts rule breaches.

She worked at failed personal injury firm Dennison Greer, which was shut down by the Solicitors Regulation Authority (SRA) last December on the grounds that manager Jayne Louise Greer had failed to comply with the accounts rules and there was also reason to suspect dishonesty on her part.

A newly published employment tribunal ruling from earlier this year has shed light on the case, with Employment Judge Franey saying that Ms SE Barker-Smith resigned from the firm in June 2016, alleging that before she left she made “a series of protected disclosures” under part IVA of the Employment Rights Act 1996.

She brought her case in September 2016: “She complains that she was subjected to detriments as a consequence of those protected disclosures, and that those detriments also amounted to a fundamental breach of the implied term of trust and confidence which meant that her resignation should be construed as a dismissal.”

Judge Franey said Ms Barker-Smith argued that either the reason for the treatment that caused her to resign was the disclosures, in which case the dismissal would be “automatically unfair” under the Act, or it was an ‘ordinary’ unfair dismissal.

He said the solicitor also claimed breach of contract and unlawful deductions from pay in relation to holiday pay, sick pay and bonus.

The judge said he had scheduled the final hearing in the case for late October 2017, but it was postponed by Judge Howard until April this year.

However, Judge Franey said that in December 2017, Ms Greer applied for the case to be stayed and the final hearing postponed after learning that the SRA was going to close her practice.

Ms Barker-Smith opposed the request for a stay and postponement. Instead she applied for the response to be struck out or for Ms Greer to be ordered to pay a deposit.

Her counsel recognised that the SRA had made no finding of dishonesty, but argued that “there was clearly reason to suspect it”.

With Ms Greer saying she had no access to the files she needed to defend the proceedings properly, Ms Barker-Smith submitted that she had little or no reasonable prospect of successfully defending the claim.

Judge Franey rejected these applications. He said counsel for Ms Barker-Smith “rightly recognised that the absence of the files was relevant only to the question of whether protected disclosures were made”, but would not hamper Ms Greer on other issues, including the “key issue” of whether there was a “causal link” between the disclosures and detrimental treatment.

“I rejected the contention that the SRA intervention itself, or the practical difficulties caused to the respondent by it, could be said to be such as to result in a conclusion that there was no reasonable or little reasonable prospect of the other aspects of her defence succeeding.”

Turning to Ms Greer’s applications for a stay and postponement, Judge Franey said “extremely serious” allegations had been made by Ms Barker-Smith in her further particulars.

“Had the allegation of a breach of trust and confidence been restricted to the alleged protected disclosure detriments, there might have been merit in the contention that the tribunal would not have to make a decision on whether the respondent had been operating fraudulently, but only whether the claimant had a reasonable belief that there were accounts irregularities.

“The clear pleading in the further particulars, however, took the case into a different sphere: it was said to be part of the breach of contract that the respondent was operating fraudulently.

“In deciding whether there was a breach of trust and confidence, the tribunal would have to make a determination on that issue.”

Judge Franey said Ms Greer had not disclosed the documents she needed to rely on before the intervention because the claimant had only identified the files shortly before the SRA took control of them.

Although Judge Howard had warned that a further postponement should only take place in “exceptional circumstances”, Judge Franey said the SRA intervention was one.

It prevented Ms Greer from preparing her defence and meant it would not be possible for her to have a fair hearing.

Judge Franey said the final hearing “should be postponed and re-listed at the earliest opportunity, even though that was not going to be before 2019”.

He added that he did not consider it appropriate to stay the proceedings.

“I did not accept that either the conclusion of the SRA intervention in the practice, or any determination to be made in due course by the Solicitors Disciplinary Tribunal, would have any significant bearing on the issues for the tribunal to decide.

“The reason for postponement was to recognise the practical difficulty for the respondent in getting access to files which she needed to defend the allegations, and the inevitable consequence of a postponement would be that there would be ample time to address this practical issue.”

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